# Petition — Bensing v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 434 U.S. 832

## Text

——— 4

In The

Supreme Court of The United States

No.

-_~

ROBERT G. BENSING,

. Petitioner-Appel lant
UNITED STATES OF AMERICA,

Defendant-Appel lee

PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

Robert B. Booz

Counsel for Petitioner-Appel lant
12505 W. 32nd Avenue

Wheat Ridge, Colorado 80033
Telephone: 303-402-0168

INDEX

Table of Authorities

Citation to Opinion Below.........

Statement OF durtsegiction ... 2 csete

Questions Presented for Review ......

Federal Statutes, Rules and

Regulations Involved .......... lla

es Gee ee sn we 6 eke we ele 8

A.
B.

Procedural History ........

I oad a Pe ee Bae

Reasons for Granting the Writ .......

-

Certiorari should be granted
because: that portion of 10 U.S.C.
§ 8287, which congress enacted in
1956 as Section 207 of the Armed
Forces Regular Officer Augmentation
Act, viclates the due process
clause of the fifth amendment in
granting promotion credit to
Bensing's career contemporaries

who served with him in World War II,
if they were over 21 years of age,
and denying such credit to Bensing
and others for concurrent service
performed prior to becoming 2]
years of age; that said 1956 Act is
unlawfully discriminatory, and is
based upon a false and irrational

i

II.

INDEX (Continued)

Page

premise, namely that Congress
could and should modify the

1947 Officer Personnel Act
retroactively to grant promotion

credit for wartime service as
commissioned officers to one
group while denying it to another
group solely on the basis of age,
even though both groups had
accepted regular commissions
under the 1947 Act and had prior
concurrent service in wartime

and thereafter; and further,

that the denial of promotion
credit for those who served as
commissioned officers in wartime
while under 21 years of age was
designed primarily as an unwar-
ranted protective device for the
young men who spent the war years
as cadets in the sanctuary of the
United States Military Academy.

Certiorary should be granted
because: Bensing was wrongfully
denied consideration for pro-
motion due to an admitted error

in his military personnel records.
Since he was not considered, he
could not be promoted, and the
lower courts improperly placed the
burden of proving damages upon
os: «+s ee © be es 6 8

ij

III.

INDEX (Continued)

Certiorari should be granted
because: immediately upon the
implementation of the 1956 Statute,
retroactively granting promotion
credit for wartime service only

to those who were 21 years of

age during such service, Bensing's
relative position for promotion,
his time-in-grade, and his rank
dropped drastically compared to
that of his wartime career con-
temporaries who were 21 years of
age during World War II and re-
ceived the retroactive promotion
credit for world War II conmis-
sioned service which Bensing

was denied. No such provision was
incorporated in the 1947 Act under
which Bensing received appointment
to a Regular commission in 1972.
Tne 1947 Act provided credit only
for commissioned service performed
after the passage of the Act, a
clearly constitutional and non-
discriminatory legislative enact-
ment even though no appointment

or credit for promotion prior to
Age 2! was provided. No
retroactive grant or denial of
credit for service performed prior
to the passage of the Act was
included. Bensing's career was
shattered by the 1956 retroactive
deprivation of rights, privileges
and property, and his career con-
temporaries moved inexorably

ahead in career progression.

iii

Page

INDEX (Continued)
Page

This discriminatory depri-
vation of promotion credit
for World War II service
alone would have prevented
normal career progression.
When combined with the
admitted administrative error
and the effect of the 1959
Cfficer Grade Limitation Act
(which allowed the Air Force
to convert promotion criteria
based upon "“time-in-grade" to
2 dual basis of "Promotion
List Service Date" and
“time-in-grade"). The result
was inevitably the two pass-
overs for promotion which
required his involuntary
early retirement as a major
after many years of exem-
plary service to his country
in war and peace as a com-
missioned officer in the armed
forces. ae + & se @ & ee

iv

TABLE OF A'ITHORITIES

I. CASES

Accord, In the Matter of Patricia A.,....

31 N.Y. 2d 83, 355 N.Y. 2d 33 (1972)

memetrems ©. Mowmil, ..-. se ee ees
371 F. Supp. 48 (D.Neb. 1974)

Blassman v. Markworth, ..........

359 F. Supp. 7 (N.D. 111. 1973)

ee eS ew ae at a es
347 1? 497 (1954)

Cleveland Board of Educationv. .....
LaFlcur, 414U.S. 632 (1974)

Commonwealth v. Daniels, -+-+-++-++s-s
430 Pa. 642, 243 A.2d 400 (1968)

Cooper v. Nix, 343 F. Supp. 1101 ----.--
(W.D. La. 1972), aff'd as modified,
496 F.2d 1285 (5th Cir. 1974)

Dunn v. Blumstein, -+-++ +++ ++ ees
405 U.S. 330 (1972)

Human Rights Party v. Secretary cf -:+-: -

State for Michigan, 3/0 F. Supp. 921
(E.D. Mich. 1573)

Kahn v. Shevin,
416 U.S. 351 (1974)

en « .~ bois oi g wie 6 6 8s ew

456 F.2d 18 (1972)

Page

bee we Ri as fs BS ee Seo 1]
3oT U.S. 68(1968)

Murgia v. Commonwealth of --+--+-++-+:+:> 14
Massachusetts Board of Retirement,

376 F. Supp. 753 (D Mass. 1974)

x) ee ee ee ae a 10

404 U.S. 71, 76 (1971)

Royster Guano Co. v. Virginia, --+-+-+--:-: 10

285 U.S. 412, 415 (1920)

Schlesinger v. Ballard,-- --+-++-++-+ss-. 9
U.S. : n.3 (1975)

Shapiro v. Thompson,- - +--+ +++ +*** eee 9
394 U.S. 618, 642 (1969)

Skinner v. Oklahoma, - +--+ +++ ee? 11,15
U.S.
United States vy. See. = stsi‘éi;OC’NC#C#C§CS, 14

456 F.2d 1401 (Sth Cir.),
vacated on other grounds,
499 U.S. 814 (197

Viandis v. Kline, «+--+ * «+ ee ee ees 14
412 U.S. 447 (1973)
Weiss v. Walsh, - - - see eee eee ees 14

324 F. Supp. 75 (S.D.N.Y. 1971),
aff'd, 461 F.2d 846 (2d Cir. 1972)

vi

Page
II. STATUTES

Title 10 U.S.C. : 8287, Section 207
of the Regular Officer Augmentation
gS ee ae ee 2 et seq.

Section 506 (c) of the Armed
Forces Regular Officer
Augmentation Act of 1947
(repealed).

Legislative History of

Section 203 (d)

Regular Officer Augmentation

Act of 1956, U.S. Code

Congressional and Administra-

tive News, 1959, at page 3369........, 17

Legislative History of

10 U.S.C. 8202, 1959 Officer

Grade Limitation Act, U.S. Code

Congressional and Administrative

News, 1959, at page 2694. ........ 6,21

Section 27, Public Law 85-861,

1957, amending 10 U.S.C. 8287,
MS tf og we 6 a ce és eee 7

III. OTHER AUTHORITIES

Developments in the Law:

Equal Protection

82 Harv. L. Rev. 1965 (1969). ........ 9

vii

IN THE SUPREME COURT OF THE UNITED STATES

No.

ROBERT G. BENSING, Petitioner-Appel lant
vs.

UNITED STATES OF AMERICA, Defendant-Appel lee

PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES OF COURT OF APPEALS
FOR THE TENTH CIRCUIT

Petitioner Robert G. Bensing prays that a
Writ of Certiorari issue to review the decision
of the United States Court of Appeals for the
Tenth Circuit, (the "Court of Appeals") entered
March 22, 1977, in the case of Robert G. Bensing,
Petitioner-Appellant, vs. United States of
America, Defendant-Appellee, Case No. 76-1125,
which affirms the order of the United States
District Court for the District of Colorado
(the "District Court") entered on December 23,
1975, denying the relief sought by the Petitioner-
Appellant and dismissing his cause of action,
Case Number C-5181 in the District Court.

CITATION TO OPINION BELOW

The opinion of the United States Court of
Appeals for the Tenth Circuit in Robert G. Bensing,
Petitioner-Appellant, vs. the Unites States of
America, Defendant-Appellee, Case No. 76-1125,
was filed March 22, 1977, and to the best of
Petitioner's knowledge is not yet reported. A
copy of this opinion is appended hereto as
Appendix A.

2

STATEMENT OF JURISDICTION

Petitioner seeks a Writ of Certiorari to review
the decision of the United States Court of Appeals
for the Tenth Circuit entered March 22, 1977, in the
case of Robert G, Bensing, Petitioner-Appel lant,
vs. United States of America, Defendant-Appellee,
Case No. 76-1125, citing Title 28 U.S.C. §1254 which
provides that:

Cases in the courts of appeals may be re-
veiwed by the Supreme Court by the follow-
ing methods:

(1) By writ of certiorari granted upon
the petition of any party to any civil or
criminal case, before or after rendition
of judgment or decree...

This statute is believed to confer on the Supreme
Court of the United States jurisdiction to review
by Writ of Certiorari the decision of the Tenth
Circuit Court of Appeals affirming the denial of
relief to the Plaintiff-Appellant and the dis-
missal of his cause of action by the District Court.

QUESTIONS PRESENTED FOR REVIEW

1. Does 10 U.S.C. 8287(a)(1) deny Robert G. .
Bensing, Plaintiff-Appellant, due process of law
under the Federal Constitution by failing to permit
credit towards promotion for active commissioned
military service perfurmed before the age of 21 years?

2. Did the District Court commit error by
denying Robert G. Bensing's claim for relief as a
result of Bensing's having been wrongfully denied
consideration for promotion due to an admitted
error in Bensing's military records?

3. Is not the statute unfair and discrimina-
tory and designed, not to grant promotion credit

for time served, but solely to deprive a very
limited group of young wartime officers, in-
cluding Bensing, of earned and deserved pro-
motion credit while protecting another limited,
though influential group, namely service
academy graduates who were cadets in the pro-
tected sanctuary of the Academy during World
War II?

4. Did not the combined effect of dep-
rivation of credit for-wartime service and
admitted administrative error result in Bensing's
failure to be promoted beyond the grade of major
and prematurely terminate his career in that
relatively low grade after more than 22 years
active duty as a commissioned officer during
three separate conflicts?

STATEMENT OF THE CASE
A. Procedural History
The parties will be referred to as follows:
Plaintiff-Appellant will be referred to
as “Bensing"; Defendant-Appellee will be referred
to as "United States."

Action No. C-5181 was commenced in the

United States District Court, District of Colorado,

by Bensing, a retired military officer, alleging
that the United States has wrongfully denied him

credit towards promotion for commissioned military
service which was performed before Bensing reached

the age of 21 years. Additionally, Bensing
alleged that an error in his personnel records
was wrongfully permitted to exist and said error
caused Bensing to be denied consideration for
promotion with Bensing's contemporaries. Robert
G. Bensing is a retired air force officer whs was
involuntarily retired on October 31, 1971, in the
grade of Major.

The United Stated denied the allegations of
the Complaint and asserted lack of jurisdiction,
failure to state a claim upon which relief may
be granted, laches, and res judicata.

The matter was tried to the Court in the
United States District Court for the District of
Colorado on November 17, 1975. Following the
trial, the District Court Judge entered findinas
of fact into the record and ruled that the burden
of proof was upon Bensina to prove, that had an
error not existed in his personnel record he would
have received a promotion in the fiscal year 1961.
The Court ruled that Bensing did not sustain this
burden of proof and denied his claim upon its
merits. The Court also entered findings of fact
with regard to Bensing's claim for relief which
alleged the unconstitutionality of 10 U.S.C. 8287.
The Court then requested counsel to file briefs
on the constitutionality of 10 U.S.C. 8237. After
having received and considered the briefs of the
parties dealing with Bensing's claim that
10 U.S.C. 8287 violates Bensing's right to equal
protection of the law under the Federal Constitu-
tion, the Court entered Findinas of Fact and
Conclusions of Law on December 23, 1975.

The District Court ruled that Bensing failed
to sustain his burden of proving damage resulting
from the erroneous entry made by the United States
in his personnel records, and that Bensing is not
entitled to recover thereon. The Court also
ruled that 10 U.S.C. 8287, has a rational basis
for the discrimination therein as between those
who had service as commissioned officers prior to
the age of 21 years and those commissioned officers
who had no such service prior to the age of 2]
years, and that this discrimination is not ividious
and does not and did not violate Bensing's constitu-
tional rights. Therein followed a judgment of
dismissal of Bensing's Complaint.

An appeal was taken to the United States
Court of Appeals, 10th Circuit, which affirmed
the judgment and order of the District Court.

B. THE FACTS

Bensing's military record is conclusive
with regard to the following facts:

Bensing entered the armed forces on
February 2, 1943, as a private in the United
States Army. He later entered pilot training
in the United States Army Air Corps and was
commissioned a Second Lieutenant on March 12,
1944. He then was trained and began active
commissioned service as a pilot of a B-17 bomber
aircraft. Bensing's military records indicate
that he participated in combat missions and was
decorated and awarded an Air Medal prior to
May 18, 1945, at which time he attained the age
of 21 years. Bensing served on active duty
until November 28, 1945, when he accepted an
appointment in the reserve forces in the grade
of first lieutenant. On April 15, 1951, Bensing
was recalled to extended active duty and served
continuously until his involuntary retirement on
October 31, 1971, in the grade of major.

The Officer Personnel Act of 1947 provided
for the appointment of Regular officers after
the date of the Act and included an age require-
ment of 21 years. The Act also provided that
for purposes of determining grade, promotion
and seniority as a Regular officer in the air
force, an officer could only receive credit at
the time of his regular appointment for all
active commissioned service which occurred after
the officer's 21st birthday, and after the ‘ate
of the Act. On October 15, 1952, Bensing
accepted an appointment as a second lieutenant

ee

~~ ---—~>

in the regular air force. Bensing's status as a
Regular officer meant more than a declaration of
an intention to be a career military officer.
Regular officers, when compared with Reserve
officers, can expect a greater opportunity for
promotion in the secondary zone. Additionally,
from 1959 until 1971, Regular officers dominated
secondary zone promotions among field grade
officers (major and above).

On November 19, 1956, an erroneous entry in
Bensing's personnel records established nis
Promotion List Service Date (PLSD) as January 15,
1951. This error was not corrected until January
18, 1961, at which time Bensing's records were
corrected to reflect the PLSD of September 19,
1950. The significance of a PLSD was increased
by the Officer Grade Limitation Act of 1959.

The effect of this Act was to convert from a
time-in-grade criteria to a dual criteria of
Promotion List Service Date and time-in-grade for
promotions.

It is undisputed that Plaintiff-Appel lant
was not considered for promotion to the grade of
major in the secondary zone due to an incorrect
PLSD. In FY 1961, Captain Bensing, because of
his military record, time-in-grade, and Regular
officer status, had reason to believe he would be
conipetitive when considered for promotion to the
grade of major in the secondary zone. Regular
officers dominated secondary zone promotions. In
FY 1960, of the 19.9% of the secondary zone
selectees for major, 91.6% were Regular officers.
In FY 1961, of the 9.1% of the secondary zone
selectees for major, 90.7% were Regular officers.

The United States provided Bensing no means,
by regulation or otherwise, to inform promotion
boards which considered Bensing subsequent to

FY 1961 of the error which caused Bensing to be
considered one year later than his peers. Were
it not for 10 U.S.C. 8287, Bensing would have
been permitted to add 14 months of commissioned
service for the purpose of determining arade,
position on promotion lists, and seniority in
grade. Were it not for the effect of the cited
statute, Bensing would have advanced earlier to
the grade of major and would have been paid the
appropriate higher rate of compensation. His
carrer progression would have been normal and
he would have advanced with his career contem-
poraries of World War II. Instead, because of
the error compounded by the statutory loss of
standing, normal progression ceased and his
career was doomed to premature termination.

The promotion credit loss could have been mini-
mized by use of the statutory authority provided
in Section 27 of Public Law 85-861, 1957, but
Bensing's records were obviously in shambles and
remained so until the time of his involuntary
retirement when his certificate of discharge
reflected an incorrect date of entry to extended
active duty. Section 27 of PL 85-861 provides
as follows:

Notwithstanding any other provision
of law, the years of service credited
to an officer of the Regular Air Force
on July 20, 1956, for the purposes of
Section 8287, 8888(2)(A)-(C) and (E)-(G),
and 8927(a) (1)-(3) and (5)-(7) and
b)(2) of Title 10, United States Code
this section and sections 8888(2)
(A)-(C), (E)-(G) and &927(a) (1)-(3),
(5)-(7), (b)(2) of this title), may be
increased but not by more than two years,
under regulations to be prescribed by
the Secretary of the Air Force.

REASONS FOR GRANTING THE WRIT
I

CERTIORARI SHOULD BE GRANTED BECAUSE: THAT
PORTION OF 10 U.S.C. § 8287, WHICH CONGRESS
ENACTED IN 1956 AS SECTION 207 OF THE ARMED

FORCES REGULAR OFFICER AUGMENTATION ACT,

VIOLATES THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT IN GRANTING PROMOTION CREDIT TO
BENSING'S CAREER CONTEMPORARIES WHO SERVED WITH
HIM IN WORLD WAR II, IF THEY WERE OVER 21 YEARS

OF AGE, AND DENYING SUCH CREDIT TO BENSING AND
OTHERS FOR CONCURRENT SERVICE PERFORMED PRIOR TO
BECOMING 21 YEARS OF AGE; THAT SAID 1956 ACT IS
UNLAWFULLY DISCRIMINATORY, AND IS BASED UPON A
FALSE AND IRRATIONAL PREMISE, NAMELY THAT CONGRESS
COULD AND SHOULD MODIFY THE 1947 OFFICER PERSONNEL
ACT RETROACTIVELY TO GRANT PROMOTION CREDIT FOR
WARTIME SERVICE AS COMMISSIONED OFFICERS TO ONE
GROUP WHILE DENYING IT TO ANOTHER GROUP SOLELY

ON THE BASIS OF AGE, EVEN THOUGH BOTH GROUPS

HAD ACCEPTED REGULAR COMMISSIONS UNDER THE 1947
ACT AND HAD PRIOR CONCURRENT SERVICE IN WARTIME
AND THEREAFTER; AND FURTHER, THAT THE DENIAL OF
PROMOTION CREDIT FOR THOSE WHO SERVED AS COM-
MISSIONED OFFICERS IN WARTIME WHILE UNDER 21 YEARS
OF AGE WAS DESIGNED PRIMARILY AS AN UNWARRANTED
PROTECTIVE DEVICE FOR THE YOUNG MEN WHO SPENT THE
WAR YEARS AS CADETS IN THE SANCTUARY OF THE UNITED
STATES MILITARY ACADEMY.

Title 10 U.S.C. 8287(a)(1) creates two classes
of commissioned officers for purposes of determin-
ing grade, position on a promotion list, and eli-
gqibility for promotion in the Air Force. On the
one hand are all persons commissioned after
becoming 21 years of age; on the other, all persons
who received their commission before reaching age
21. Persons in the former class receive credit

towards promotion for all service performed

afler commission, while those in tie latter class
are denied credit for any amount of service per-
formed after commission but prior to their be-
coming 21 years of age. The result of this class-
ification is to prejudice all persons in the latter
class in that, by operation of 10 U.S.C. § 8287
(a)(1), they are not promoted as quickly as per-
sons who have served under commission for the
exact same period but who fortuitously happened

to have been commissioned after reaching 21 years
of age. Bensing, who was commissioned as a second
lieutenant on March 12, 1944, but who did not
become 2] until May 18, 1945, was so prejudiced

by losing credit for approximately 14 months
post-commission service as a result of this
challenged section.

Because the statute in question is a
federal statute, any constitutional challenge
based on an invidious descrimination contained
therein must be predicated upon the Due Process
Clause of the fifth amendment. The Due Process
Clause of the fifth amendment, however, incor-
porates all of the requirements of the Equal
Protection Clause of the fourteenth amendment.

See Schlesinger v. Ballard, 419 U.S. 498,
500 n.3 (1975); Shapiro v. Thompson, 394 U.S. 618,
642 (1969); Bolling v. Sharpe, 347 U.S. 497 (1954).

In recent years Supreme Court decisions
have developed a "two-tiered" scrutiny under the
Equal Protection Clause, Developments In The Law:
Equal Protection, 82 Harv. L. Rev. 1065 (1969),
in which the degree of tolerance or latitude
permitted a statutory classification will depend
upon the interests affected by the classification
or the nature of the classification itself.

10

Where the classification is "suspect," i.e.,

drawn along racial or other constitutionally
impermissible lines such as alienage, or where the
interest affected by the classification is funda-
mental, i.e., an interest protected explicitly

or implicitly by the Constitution itself, then the
statute is subjected to the strictest of scrutiny.
It must be in furtherance of a compelling state
interest and must be drawn in such a way that the
only way in which the interest can be realized

is by the statutory scheme in question. Dunn v.
Blumstein, 405 U.S. 330 (1972). Where, however,
neither a fundamental interest nor a suspect
classification is implicated by the statute, then
the lines drawn by the statute are permitted
greater leeway and the only requirement is that
the “classification ‘must be reasonable, not
arbitrary, and must rest upon some ground of
difference having a fair and substantial relation
to the object of the legislation, so that all
persons similarly situated shall be treated
alike.'" Reed v. Reed,404 U.S. 71, 76 (1971),
quoting from Royster Guano Co. v. Virginia,

253 U.S. 412, 415 (1920). It is submitted that

in the case at bar the failure to give credit

for purposes of promotion for commissioned ser-
vice performed prior to age 21 fails to meet these
constitutional tests, that the exclusion of such
service is fundamental because it deals with an
important aspect of the armed forces, is "suspect"
because it discriminates solely on the basis of
age, and if not regarded as fundamental or
"suspect", it is arbitrary and bears no reasonable
relation to any legitimate governmental objective.

Bensing, at age 19, proved liimself to be
worthy of commission as a second lieutenant and
in that capacity to serve as an aircraft commander

1]

flying combat missions. He did exactly what

other commissioned officers did, nothing different.

Because he was not then 21 years old, however,

10 U.S.C. § 8287 (a)(1) deprives him of credit
for the period of such service performed prior to
his twenty-first birthday. There is no rational
basis for treating two persons performing the
same service differently for purposes of pro-
motion merely because of their age, and more
especially SO when it involves a retroactive
grant of additional rights, privileges and
property several years after the service was
performed. Such arbitrary differentiation
strikes at the very essence of the prohibition
against denial of equal protection under both the
fourteenth and fifth amendments.

In Skinner v. Oklahoma, 316 U.S. 535
(1942), the Supreme Court held an Oklahoma
statute which required sterilization of some
“habitual criminals" but not others to be uncon-
stitutional, stating, at 541-42:

When the law lays an unequal hand
on those who have committed intrin-
sically the same quality of offense
-++, it has made as invidious a
discrimination as. if it had se-
lected a particular race or nation-
ality for oppressive treatinent...
The equal protection clause woula
indeed be a formula of empt_ wor °
if such conspicuously art.ticiai
lines could be drawn.

In Levy v. Louisiana, 391 U.S. 69 (1968),
the Court found a Louisiana statute which pre-
cluded illegitimate children from recovering for
the wrongful death of their mother to be uncon-
stitutional when legitimate children in exactly

12

the same position could recover. In so holding,
the Court said:

Why should the illegitimate child be
denied rights merely because of his
birth out of wedlock? He certainly

is subject to all the responsibilities
of a citizen, including the payment of
taxes and conscription under the Selec-
tive Service Act. How under our
constitutional regime can he be denied
correlative rights which other citizens
enjoy?

Legitimacy or illegitimacy of birth
has no relation to the nature of the
wrong allegedly inflicted on the mother.
These children, though illegitimate,
were dependant on her; she cared for them
and nurtured them...(391 U.S. at 71-72.)

In another setting, disparate treatment of
persons otherwise in exactly the same position was
found to be constitutionally offensive in Common-
wealth v. Daniels, 430 Pa. 642, 243 A2d 400 (1968),
in which the Pennsylvania Supreme Court struck down
Pennsylvania's Muncy Act, which provided for
harsher sentences for women than for men convicted
of the same crime. In so doing, the court held,
243 A.2d at 403-404, as follows:

A Classification by sex alone would not,
per se, offend the Equal Protection Clause
of the United States Constitution. For
example, there are undoubtedly signifi-
cant biological, natural and practical
differences between man and women which
would justicy, under certain circum-
stances, the establishment of different
employment qualification standards. ...

13

We are convinced, however, that the
considerations and factors which would
justify a difference between men and
women in matters of employment, as well
as in a number of other matters, do not

overn or justify the imposition of a
lobar or greater sentence of women
than is imposed upon men for the con-
mission of the same crime. wy

In a similar kind of case, the Tenth Cir-
cuit Court of Appeals has held an Oklahoma
statute to be unconstitutional in providing for
criminal treatment of males over 16 years of
age, while not providing for similar treatment
for girls until they reached 18. Lamb v. Brown,
456 F.2d 18 (1972). The Court stated, at 20: —

We have not been presented with a
logical constitutional justification for
the discrimination inherent in (the
statute). The State, in its brief and
oral argument has simply relied upon
the unexplained “demonstrated facts
of life." Because the purpose of the
disparity in the age classification
between 16-18 year old males and 16-18
year old females has not been demon-
strated, we hold that (the statute)
is violative of the equal protection
ciause.

in the Matter of Patricial A.,

Accord,

Age classifications, like classifications by
sex, may be constitutional where they reflect
some real difference. See, e.g., Schlesinger v.
Ballard, 419 U.S. 498 (1975); Kahn v. Shevis,

14

416 U.S. 351 (1974). In the usual case involving
classifications by age, persons either below or
above a particular age are prohibited from
engaging in some activity because of a presumed
inability attributable to early or advanced age.
Manson v. Edwards, 482 F.2d 1076 (6th Cir. 1973)
(upholding minimum age of 25 for school board);
United States v. Duncan, 456 F.2d 1401 (9th Cir.),
vacated on other grounds, 409 U.S. 814 (1972)
{upholding minimum age of 21] for grand jury
service); Murgia v. Commonwealth of Massachusetts
Board of Retirement, 376 F. Supp. 753 (D. Mass.1974)
(three judge court) (holding mandatory retire-
ment age of 50 for state police to be unconstitu-
tional); Armstrong v. Howell, 371 F. Supp. 48
(D.Neb. 1974) (upholding mandatory retirement

age of 65); Human Rights Party v. Secretary of
State for Michigan, 370 F. Supp. 921 (E.D. Mich.1973)
(three judge court) (upholding minimum age of 18 to
run for school board); Blassman v. Markworth, 359 F.
Supp. 1 (N.D.I11. 1973) (three judge court)
(upholding minimum age of 2] to run for school
board); Cooper v. Nix, 343 F. Supp. 1101

(W.D. La. 1972), aff'd as modified, 496 F.2d 1285
(Sth Cir. 1974) (finding regulations requiring
students to live on campus to be unconstitutional);
Weiss v. Walsh, 324 F. Supp. 75 (S.D.N.Y. 1971),
aff'd 461 F.2d 846 (2d Cir. 1972) (upholding
mandatory retirement age of 65). In the case at
bar, for example, were persons under the age of

21 precluded from receiving a commission as a
second lieutenant, Bensing's constitutional
challenge would be far more difficult. Such a

case might conceivably give rise to a due pro-

cess attack based upon irrebuttable presumptions,
se, e.g., Cleveland Board of Education v. LaFleur,
414 U.S. 632 (1974); Viandis v. Kline, 412 U.S. 44]
(1973). The opposite is true in this case.

Bensing was not prohibited from serving as a

15

second lieutenant. Based upon an assessment of
his capabilities and maturity, he was commissioned
when only 19 years of age and was given the awe-
some responsibility of flight crew commander
flying combat missions during World War II.

Given the fact that a judgment was made as to
Bensing's ability to serve, notwithstanding his
young age, there can be no rational purpose for
precluding him from receiving credit towards
promotion for the period of time served as a
second lieutenant prior to attaining age 21.

Just as in Skinner v. Oklahoma, supra, and

Levy v. Louisiana, supra, when people are identi-
cally situated, arbitrary distinction cannot
constitutionally justify treating certain of
those people differently than others. The Tenth
Circuit so held in Lamb v. Brown, supra, when it
refused to uphold the Oklahoma statute in the ab-
sence of "a logical constitutional justification
for the discrimination..." The constitutional
invalidity of 10 U.S.C. § 8287(a)(1) would be
more strikingly apparent, but no different ana-
lytically, were second lieutenants under 21 years
of age paid a lower rate of pay than those over
21 doing exactly the same job with similar service
experience. Such an arbitrary and irrational
provision would have been insupportable at the
time the service was being performed, but in this
case, since persons under 21 serving as commis-
sioned officers were retroactively deprived of
equal credit towards promotion for that time

served, they are, according to the statutory scheme

in question, in a very real sense receiving less
compensation for that period of service than
persons who were over 21 years of age, and who
in addition to their other compensation, were
unknowingly building up credits towards pro-
motion, credits denied to Bensing.

16

By way of judicial knowledge, this Honorable
Court should consider American History which
foliowed December 7, 1941. The United States
was at war, and all patriotic able-bodied persons
rose to meet this challenge. Among those persons
was Robert G. Bensing, who, while in his teens,
enlisted for military service. After having
completed pilot training, Bensing was commissioned
an officer and given the responsibility as the
pilot and aircraft commander of a four engined
bomber. The United States at this time had no
reluctance to recognize Bensing's authority or
status as an office in command of the combat
crew including othe commissioned officers who
were very likely over 21 years of age. He was
ordered to perform combat missions and to be
responsible for the lives of the crewmen on board
his aircraft. Hypothetically speaking, Bensing's
peers who had passed the age of 21 years were
accruing time in grade that would considerably
enhance their promotion opportunity, while
Bensing was not, although simultaneously exposed
to the same hazards of combat. While not
involved in flying, he wore the same uniform
and was entitled to the same military courtesies
and privileges. The law then in existence pro-
vided for the same pay and other emoluments for
officers of the same grade and longevity in
service, regardless of age.

During the Korean Conflict, the Defendant again
found reason to rely upon Bensing for military
service. He was recalled to extended active duty.
With his combat experience, his recently acquired
college degree, and his professional engineering
certificate, Bensing was a prime and attractive
candidate to the United States when selecting
reserve officers to be appointed to the Regular
Air Force. On October 15, 1952, Bensing became a

17

second lieutenant in the Regular Air Force.
Regular officer status has traditionally and
historically meant more frequent and rapid
advancement in grade when compared with reserve
officers of similar experience and ability.

The inference has been made above that
the age requirement was included in the 1956
Act to benefit former United States Military
Academy cadets, who could not graduate before
reaching 21 years of age. Such protective de-
vices are not uncommon, and in some instances
are clearly delineated. In fact, the Legislative
History of the 1956 Act, as set forth in the
U.S. Code Congressional and Administrative News,
Yolume 2, 1956, at page 3369, discusses such a
protective device in Section 203(d), although
it is not directly related to this case:

(d) PROTECTION OF PROMOTION SENIORITY
OF ACADEMY GRADUATES WITH CON-
TINUOUS SERVICE.

The purpose of this subsection
is to insure the promotion seniority
of Academy graduates now on the
Regular list with regard to class-
mates who may receive Regular
appointments under this title.
It provides for two things:
(1) That no person who was a cadet
at one of the Academies may be ap-
pointed with a date of rank prior
to the date received by his class-
mates who were graduated and appointed
as officers, and (2) that no person
who was a cadet but did not graduate
from an Academy may be credited with
a longer period of promotion-list
service at the time of his appoint-
ment than is credited to his former

ad

18

classmates now on the Regular list.
This subsection is a restatement of
existing law.

The protection provided by Section 207 is
more subtle, since it purports to award pro-
motion credit to those over 21 rather than to
deprive those under 21 of equally deserved credit
which might allow them to move to higher rank
than a wartime academy cadet of the same age,
even though academy graduates have many well
recognized advantages in career progression over
other Regular officers.

Only in the direst emergency such as World
War II does the nation commission 19 year olds,
give them command over the lives of their com-
rades and the operation of complicated war
machines. Only a relatively few young men are
qualified for such service. No statute depriving
them of credit for such service can escape the
label “invidious, irrational, discriminatory,
and unconstitutional."

II

CERTIORARI SHOULD BE GRANTED BECAUSE: BENSING
WAS WRONGFULLY DENIED CONSIDERATION FOR PRO-
MOTION DUE TO AN ADMITTED ERROR IN HIS
MILITARY PERSONNEL RECORDS. SINCE HE WAS WOT
CONSIDERED, HE COULD NOT BE PROMOTED, AND THE
LOWER COURTS IMPROPERLY PLACED THE BURDEN OF
PROVING DAMAGES UPON BENSING.

The District Court and the Court of Appeals
committed error by denying Bensing's Claim for
damages as a result of his having been wrongfully
denied consideration for promotion due to an
admitted error in his military personnel records.

19

It is an admitted fact in the record that Bensing's
Promotion List Service Date was incorrect from
November 19, 1956 until January 18, 1961.
Bensing's PLSD was then changed from January 19,
1951, to September 19, 1950. The Defendant also
admitted that Bensing should have been eligible
for consideration for temporary promotion to the
grade of major in the secondary zone in the fiscal
year 1961. However, because of the erroneous
PLSD, Bensing was not considered for temporary
promotion to the grade of major in the secondary
zone until fiscal year 1962.

The District Court and the Court of Appeals
have erroneously ruled that in order for Bensing
to establish a claim for which relief can be
granted, he must bear the burden of proving damages
by showing that he was not promoted due to the
incorrect Promotion List Service Date. Because
of the complexity of the military promotion system,
it is virtually impossible for anyone but the
Defendant to carry this burden of proof. Exhaus-
tive efforts in pretrial discovery failed to elicit
much of the pertinent information from the
Defendant. The burden of showing lack of damage
should be upon the Defendant since such proof,
if it exists, is in the hands of the Defendant.
Further, the Defendant alone was responsible for
the failure of an absolute contingency upon which
promotion rested, namely, that Bensing's name be
submitted to the promotion board for consideration.
This failure standing alone should be sufficient
to shift any burden of proof from Bensing to the
Defendant.

Efforts to obtain statistics demonstrating
the effect of the admitted error, and the rare
nature of retirement as a major from the Air
Force under circumstnaces involving the quality
and quantity of service such as that performed by

20

Bensing, were unavailing, as revealed in the
answers provided to Plaintiff-Appellant's
interrogatories by the Defendant-Appellant during
pretrial proceedings.

Bensing's records were later corrected, but
there was no provision in regulation or other-
wise for an explanation to be provided *» sub-
sequent promotion boards which would ind.cate
that Bensing had not been considered by a pre-
ceding promotion board due to the incorrect
Promotion Service List Date. The practical
result was that Bensing would be viewed by a
promotion board as an officer who had not
been promoted by a prior promotion board, although
Bensing's military personnel records (at this
later date after the correction) would have
indicated consideration. Following this non-
selection after apparent, but non-existent,
promotion consideration in FY 1961, Bensing's
military personnel records were indelibly
"marked" in that his records would always
be mistakenly judged by all subsequent promo-
tion boards as those of an officer who, having
failed to perform on the same level as his con-
temporaries, should be judged with other non-
selected officers and with younger and less
experienced officers who later became eligible
for promotion.

III

CERTIORARI SHOULD BE GRANTED BECAUSE: IMMEDIATELY
UPON THE IMPLEMENTATION OF THE 1956 STATUTE,
RETROACTIVELY GRANTING PROMOTION CREDIT FOR WAR-
TIME SERVICE ONLY TO THOSE WHO WERE 21 YEARS OF
AGE DURING SUCH SERVICE, BENSING'S RELATIVE
POSITION FOR PROMOTION, HIS TIME-IN-GRADE, AND
HIS RANK DROPPED DRASTICALLY COMPARED TO THAT OF
HIS WARTIME CAREER CONTEMPORARIES WHO WERE 21

21

YEARS OF AGE DURING WORLD WAR II AND RECEIVED
THE RETROACTIVE PROMOTION CREDIT FOR WORLD WAR II
COMMISSIONED SERVICE WHICH BENSING WAS DENIED.

NO SUCH PROVISION WAS INCORPORATED IN THE 1947
ACT UNDER WHICH BENSING RECEIVED APPOINTMENT TO
A REGULAR COMMISSION IN 1972. THE 1947 ACT
PROVIDED CREDIT ONLY FOR COMMISSIONED SERVICE
PERFORMED AFTER THE PASSAGE OF THE ACT, A CLEARLY
CONSTITUTIONAL AND NONDISCRIMINATORY LEGISLATIVE
ENACTMENT EVEN THOUGH NO APPOINTMENT OR CREDIT
FOR PROMOTION PRIOR TO AGE 21 WAS PROVIDED.

NO RETROACTIVE GRANT OR DENIAL OF CREDIT FOR
SERVICE PERFORMED BEFORE THE PASSAGE OF THE ACT
WAS INCLUDED. BENSING'S CAREER WAS SHATTERED

BY THE 1550 RETROACTIVE DEPRIVATION OF RIGHTS,
PRIVILEGES AND PROPERTY, AND HIS CAREER CONTEM-
PORARIES MOVED INEXORABLY AHEAD IN CAREER? PRO-
GRESSION. THIS DISCRIMINATORY DEPRIVATION OF
PROMOTION CREDIT FOR WORLD WAR II SERVICE ALONE
WOULD HAVE PREVENTED NORMAL CAREER PROGRESSION.
WHEN COMBINED WITH THE ADMITTED ADMINISTRATIVE
ERROR AND THE EFFECT OF THE 1959 OFFICER GRADE
LIMITATION ACT (WHICH ALLOWED THE AIR FORCE TO
CONVERT PROMOTION CRITERIA BASED UPON "TIME-IN-
GRADE" TO A DUAL BASIS OF "PROMOTION LIST SERVICE
DATE" AND "TIME-IN-GRADE"). THE RESULT WAS
INEVITABLY THE TWO PASSOVERS FOR PROMOTION WHICH
REQUIRED HIS INVOLUNTARY EARLY RETIREMENT AS A
MAJOR AFTER MANY YEARS OF EXEMPLARY SERVICE TO
HIS COUNTRY IN WAR AND PEACE AS A COMMISSIONED
OFFICER IN THE ARMED FORCES.

How ridiculous it would have seemed if a
congressman in committee hearings preceding the
passage of the 1956 Act had said, "Well, obviously
we need to give these Regular officers promotion
credit for their wartime service as Reserve
officers, except of course if they were 21] years
of age. If they were under 21 they don't deserve
it, even if they were flying four engined combat
aircraft as aircrew commanders."

22

No one said this, of course, because such a
statement would be invidious, a patently arbi-
trary classification utterly lacking in rational
justification, and based upon a false and ir-
raticnal premise, namely, that an officer doesn't
deserve to be promoted with his career contem-
poraries because during the initial portion of
his wartime commissioned service he had not reached
the magic age of 21 years, even thouch he had been
granted a commission and given command of a four
engined bomber in combat. Such discrimination
would not have been considered rational during
wartime, nor was it more so in 1956; nevertheless,
this is precisely what was accomplished in 1°56 by
10 U.S.C. 8287. Congress somehow overlooked the
irrational nature of the legislation proposed
by the Air Force, which in effect provides that
reaching the age of 21 years so magically enhances
an officers value as to require its adoption as
an absolute standard, even retroactively, to
deprive an officer of deserved promotion credit
earned prior to his reaching that magical age.
Obviously, as in the 1947 Act, an age requirement
can and should be part of the criteria for appoint-
ment to a commission in the armed forces. Further-
more, if Congress in its wisdom decides, as it did
in 1947, that the requirement as to age should be
21 years for appointment to a regular commission,
no one could rationally argue that the requirement,
when applied only prospectively as in the 1947 Act,
is discriminatory, even though the present trend
in granting privileges and rights as well as
property is toward a younger age. But, to reiterate,
the retroactive deprivation of rights, privileges
and property, as in this case, is clearly an
unconstitutional discrimination.

The shattering effects of the Act, in all
likelihood not comprehended at the time of its
passage, destroyed Bensing's career. Until

23

the passage of the 1956 Act, his career had
moved regularly forward with his career con-
temporaries, those of his fellow wartime officers
who chose to make the service a career, espe-
cially after they were recalled to active duty
for the Korean Conflict as were Bensing anc many
of his fellow Reserve officers. Suddenly, with
the passage of the 1956 Act, Bensing was to

drop 14 months seniority on the promotion list.
As if this were not sufficient, the Air Force
erroneously computed his new seniority under

the Act, moving him back to a Promotion List
Service Date of January 19, 1951, instead of

the correct date of September 19, 1950. The
irreparable damage to his career provided by

the Act was compounded and aggravated by this
admitted administrative error.

During World War II, pilot trainees who
were not considered qualified for commissions
were given Flight Officer status similar to that
of Warrant Officers. Under then existing
congressional enactments providing for com-
missioning of Reserve officers, the Army Air
Corps chose to grant Bensing a commission.
Should anyone be heard to say, after the fact of
his outstanding wartime combat career, thal
the commission granted this nighly decorated
wartime combat crew aircraft commander was
somehow inferior to that of his classmates in
pilot training and his comrades in arms?

Congress has attempted to say so in 10 U.S.C.8287.

An analogy has been drawn, in arguments to
support this discriminatory grant of rights,
privileges and property, that armed forces
regular commissions are normally granted only
after the applicant reaches 2] years of age.
This has no pertinency to a retroactive grant.
A more appropriate analogy would be that of a

24

statute granting a veterans bonus, pension or
preference for wartime services to those who

were 21 years of age during the wartime service,
and denying the grant to anyone who performed the
identical wartime service while under the age

of 21. Clearly an unlawful discrimination,
analagous to the grant of promotion credit herein.

The lower courts in this case have reasoned,
citing appropriate precedents, that the due
process clause bars only patently arbitrary
classifications utterly lacking in rational
justification; that the discrimination herein is
not "invidious"; and that legislative classifi-
cations will be upheld if they are reasonable,
have a fair and substantial relation to the object
of the legislation and cause “all persons similarly
circumstanced" to be treated alike. We agree
wholeheartedly, but find it incomprehensible that
Be:ising's unwarranted loss of promotion standing
could be considered other than "invidious" or
likened to that of "all persons similarly cir-
cumstanced." These persons who were “similarly
circumstanced" can only be his career contempor-
aries, his classmates, his wartime fellow commis-
sioned officers, who received invaluable rights,
privileges and property which he was denied.

This unconstitutional statutory deprivation
must be struck down, without further attempts to
cloud its true identity, as an irrational,
unlawful, unwarranted and unconstitutional age
discrimination which has, for too many years and
without due process, deprived Bensing of valuable
rights, privileges and property.

25

CONCLUSION

It is indeed ironic that Bensing, having
left civilian pursuits on two occasions to wear
the uniform of the United States and repeatedly
to expose himself to personal hazards through
three periods of military conflict, was denied
promotion consideration along with officers with
whom he had shared combat experiences. And even
more ironic was the fact that Bensing's selec-
tion to become a Regular officer effectively
denied him credit for 14 months of the most
hazardous duty experienced by members of the
armed service. The effect of the 1956 Act
granting Bensing's career contemporaries sub-
stantial precedence over him for purposes of
career advancement, compounded and aggravated
by the admitted error in recomputing his
Promotion List Service Date under the 1956 Act,
was to terminate his career prematurely, to his
considerable damage. His loss of relative
position for promotion consideration under the
1956 Act must be characterized as "invidious".
Combined with the additional loss of standing
caused by the admitted error, the effect was
devastating and the predictable result occurred.

Certiorari should be granted.

Respectfully submitted,

Robert 8. Booz

Counsel for Petitioner-Appe! lant
12505 W. 32nd Avenue

Wheat Ridge, Colorado 80033
Telephone: 303-442-0163

la

APPENDIX A
2a

Robert G. Bensing (Bensing) appeals the

dismissal of his complaint and cause of action
for deciaratory judgment, filed pursuant to
PUBLISH 28 U.S.C.A. §2201 and 28 U.S.C.A. §1346.

UNITED STATES COURT OF APPEALS Bensing sought to have 10 U.S.C.A. §8287
declared unconstitutional insofar as it denied
TENTH CIRCUIT him promotion or retirement credit for commis-

sioned military service performed before his
: 2lst birthday. He also sought damages for the
No. 76-1125 recordation of an erroneous promotion list

. service date in his personnel file which pre-
cluded his being considered for a promotion for
one year. The facts are not in dispute and will
ROBERT G. BENSING, Appeal from the be developed insofar as necessary for the dis-

Plaintiff-Appel lant, United States position of the issues presented.

)
)
Vv. ) District Court
)
)
)

for the Bensing enlisted in the armed forces in
UNITED STATES OF AMERICA, District of Colorado February, 1943. He served on active duty until
November, 1945, during which he accumulated
Defendant-Appel lee. (D.C. No. C-5181)

approximately 14 months of commissioned service
prior to his 21st birthday. This accumulated
service could not be considered for promotion
or retirement credit under Section 8287, which

Submitted: January 26, 1977 provides, in part:
(a) For the purpose of determining
John P. Hartman of Booz, Hartman and Lee, Wheat grade, position on a promotion
Ridge, Colorado, for Plaintiff-Appel lant: list, seniority in his grade in
; : ; the Regular Air Force, and eli-
Jerre W. Dixon, Assistant United States Attorney, gibility for promotion, a person
(James L. Treece, United States Attorney, on the ...shall be credited, at the time
brief), Denver, Colorado, for Defendant-Appellee. of his appointment...
(1) With the active commissioned
Before McWILLIAMS, BARRETT and DOYLE, Circuit service in the armed forces that
. he performed after becoming 21
Judges:
ye.rs of age and before his
BARRETT, Circuit Judge appointment ;

Under Section 8287, Bensing clearly could
not receive credit for promotion or retirement
for commissioned service accumulated prior to his
21st birthday.

3a

Bensing was recalled into active duty in
April, 1951. He served continuously until his
involuntary retirement in October, 1971, after
he had attained the rank of major. During this
period Bensing was erroneously assigned a
promotion list service date of January 19, 1951,
when in fact his correct promotion list service
date was September 19, 1950. As a result of
this error, Bensing was first considered for
selection to major in 1962 rather than in 1961.

Bensing petitioned that Section 8287 be
declared unconstitutional insofar as it deprived
him of credit for commissioned service performed
prior to his 2list birthday; that he be promoted
to the permanent grade of lieutenant colonel with
date of rank, back pay, and allowances restored
retroactively in accordance with the correction
of the recordation of the erroneous promotion
list service date; and that he be recalled to
active duty at the grade of lieutenant colonel.

Appellee United States responded that
Section 8287 was constitutional in that it was
enacted to allow reserve officers to obtain
benefits they could not obtain in the reserves,
including crediting their pre-21 service time
for pay, retirement, and longevity. The United
States concedes that an administrative error in
the recordation of Bensing's promotion list
service date delayed his being considered for the
rank of major until 1962, when in fact he should
have been considered in 1961.

In dismissing the action, the trial court
concluded as a matter of law that Bensing had
failed to establish that in the absence of the
administrative error in the recordation of his
promotion list service date he would have been
promoted in 1961. The court also concluded tnat
Section 8287 did not create an invidious dis-
crimination violative of Bensing's constitutional
rights.

4a

On appeal Bensing contends that (1) Section
8287(a)(1) violates the Due Process Clause of the
Fifth Amendment by failing to credit active
commissioned service performed prior to one's
becoming 21 years of age, and (2) he was wrong-
fully denied consideration for promotion due
to an admitted error in his military records.

I.

Bensing contends that the failure of
Section 8287 to give credit, for purposes of
promotion and retirement, for commissioned
service performed prior to the age of 21, is
arbitrary and unreasonable in that it bears
no reasonable relation to any legitimate
governmental objective. Bensing argues that there
is no rational basis for treating people differ-
ently for purposes of promotion and retirement,
merely because of age difference, when they are
performing identical services for their country.
Bensing states that age classifications “may be
constitutional where they reflect some real
difference."

In rebuttal the United States points out
that Section 8287 was enacted to allow reserve
officers to obtain benefits they would not have
obtained in the reserve ranks. It also pro-
vides a uniform avenue of computing seniority in
grade for regular members of the armed forces, and
as such cannot be considered an arbitrary class-
ification of individuals.

We hold that the trial court properly found
Section 8287 to be constitutional and valid. The
Due Process Clause bars only patently arbitrary
classifications utterly lacking in rational
justification. Flemming v. Nestor, 363 U.S. 603
(1960). Legislative classifications will be
upheld if they are reasonable, have a fair and
substantial relation to the object of the
legislation, and cause “all persons similarly

5a

circumstanced" to be treated alike. Johnson vy.
Robinson, 415 U.S. 361 (1974). Statutory classi-
fications will be upheld if they are reasonable,
have a fair and substantial relation to the object
of the legislation, and cause “all persons
Similarly circumstanced" to be treated alike.
Johnson v. Robison, 415 U.S. 361 (1974). Statu-
- tory classifications are set aside only if no
grounds can be conceived to justify their exis-
tence. McDonald v. Board of Election Commis-
sioners of Chicago, 394 U.S. 802 (1969); McGowan
v. Maryland, 366 U.S. 420 (1961). Imperfect
classifications do not offend the Constitution
simply because in practice they result in some
inequality. Dandridge v. Williams, 397 U.S. 471
(1970). See also: Jefferson v. Hackney,

406 U.S. 535 (1972); Gillette v. McNichols,

517 F.2d 888 (10th Cir. 1975); Leggroan v. Smith,
498 F.2d 168 (10th Cir. 1974).

Due process is inherently flexible:

...Besides, what is due process of law must
be determined by circumstances. To those
in the military or naval service of the
United States the military law is due
process.

Reaves v. Ainsworth, 219 U.S. 296 (1911),
at 304.

A court must be ever alert to refuse to sit
as a super-legislature to weigh the wisdom of
legislation, or to invoke the Due Process Clause
So as to strike down laws or regulations simply
because the Court may believe that they are
unwise or improvident. Ferguson vy. Skrupa,

372 U.S. 726 (1963).

Military age classifications are necessarily
constitutional:

6a

...he claims a violation of the equal
protection and due process clauses of the
Constitution in that the Selective

Service Act does not conscript men in the
war industries which profit by war, and
exempts men under 18%; and over age 26.

This issue has been answered against
appellant's contentions. Bolling v. Sharpe,
347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed 884
(1954); Goesaert v. Cleary, 335 U.S. 464,

69 S.Ct. 198, 93 L.Ed. 163 (1948);

Bertelsen v. Cooney, 213 F.2d 275

(5th Cir. 1954), cert. denied 348 U.S. 856,
75 S.Ct. 81, 99 L.Ed. 674. The equal
protection clause, as provided in the
Fourteenth Amendment, or as implied in

the due process clause of the Fifth
Amendment, merely requires that all
legislative classifications have a reason-
able basis and that everyone placed within a
classification be treated similarly. ...

Smith v. United States, 424 F.2d 267
(9th Cir. 1970), at 268-269.

Il.

Bensing contends that he was wrongfully
denied consideration for promotion due to the
recordation of an erroneous promotion list
service date in his military personnel records.
This point is conceded by the United States.
Bensing also contends that the trial court erred
in ruling that in order for him to state a claim
upon which relief could be granted, he must
establish that he was not promoted due to the
incorrect promotion list service date. Bensing
presents this contention in summary fashion,
without cited authorities or cogent argument and
without a showing that but for the error he would
have been promoted at an earlier date.

7a
8a

We hold that the trial court properly con- APPENDIX B

cluded that Bensing had failed to sustain his

burden of establishing damages. Bensing was

afforded an administrative review by the Secretary

of the Air Force acting through the Air Force

Board for the Correction of Military Records. We 7

cannot supersede the denial of their relief. As IN THE UNITED STATES DISTRICT COURT

noted in Orloff v. Willoughby, 345 U.S. 83 (1953):

FOR THE DISTRICT OF COLORADO
We know that from top to bottom of

the Army the complaint is often made, and
sometimes with justification, that there is ROBERT G. BENSING, )
discrimination, favoritism or other objec- )
tionable handling of men. But judges Plaintiff, )
are not given the task of running the Army. ) Civil Action
The resporsibility for setting up channels V. . ) No. C-5181
through which such grievances can be con- )
sidered and fairly settled rests upon UNITED STATES OF AMERICA,)
the Congress and upon the President of the )
United States and his subordinates. The Defendant. )
military constitutes a specialized community
governed by a separate discipline from that
of the civilian. Orderly government
requires that the judiciary be as scrupu-
lous not to interfere with legitimate
Army matters as the Army must be scrupu-
lous not to intervene in judicial matters.
While the courts have found occasion to
determine whether one has been lawfully
inducted and is therefore within the
jurisdiction of the Army and subject to
its orders, we have found no case where
this Court has assumed to revise duty
orders as to one lawfully in the service.

FINDINGS OF FACT, CONCLUSIONS
OF LAW AND ORDER

APPEARANCES:

For the Plaintiff: John P. Hartman
12505 West 32nd Avenue
Wheatridge, Colorado 80033

For the Defendant: Jerre W. Dixon
Assistant U.S. Attorney
323 United States
345 U.S., at 93-94, Bie. nA
: Drawer 3615
WE AFFIRM Denver, Colorado 80202

9a

FINDINGS OF FACT

At the conclusion of the evidence on Novem-
ber 17, 1975, the Court stated its findings of
fact into the record and requested counsel to file
briefs on the Plaintiff's claim that Title 10,
United States Code, Section 8287, deprives the
Plaintiff of his rights under the Federal Con-
stitution.

The Court appends hereto a transcript of its
findings of fact entered in the record on Novem-
ber 17, 1975 as the findings of fact in this
action.

The Court has received and considered the
briefs of the parties dealing with Plaintiff's
claim that Title 10, United States Code, Section
8287, violates the Plaintiff's right to equal
protection of the law under the Federal Constitu-
tion. The Court is now fully advised and makes
the following conclusions of law:

CONCLUSIONS OF LAW

Upon the facts as found by the Court, the
Court concludes as a matter of law:

1. That the Plaintiff failed to sustain the
burden of proving damages resulting from the
erroneous entry made on Plaintiff's record by
Defendant on November 19, 1956, and the Plaintiff
is not entitled to recover thereon.

2. That Title 10, United States Code,
Section 8287, has a rational basis for the dis-
crimination therein as between those who had
service as commissioned officers prior to the ege
of 21 years, and those commissioned officers who
had no such service prior to age 21 years, and the
discrimination therein is not “invidicus", and

10a

does not and did not violate the Plaintiff's
Federal Constitutional rights.

3. That judgment of dismissal of the
Complaint herein and all claims set forth
therein should be entered.

It is, therefore,

ORDERED that final judgment of dismissal
of the Complaint and all claims therein shall
forthwith enter.

ENTERED this 23rd day of December, 1975.
BY THE COURT:

HATFIELD CHILSON, Judge
United States District Court

lla
APPENDIX C

FEDERAL STATUTES, RULES
AND REGULATIONS INVOLVED

Title 10, § 8287, Section 207 of the Regular
Officer Augmentation Act of 1956.

Commissioned officers - Original Appointment -
Service Credit.

(a) For the purpose of determining grade,
position on a promotion list, seniority in
his grade in the Regular Air Force, and
eligibility for Promotion, a person
originally appointed in a commissioned grade
in the Regular Air Force, other than a person
appointed with a view to designation as a
medical or dental officer or as an Air Force
nurse and medical or dental officer or as an
Air Force nurse or medical specialist, shall
be credited, at the time of his appointment,
(1) with the active commissioned
service in the armed forces that
he performed after becoming 21
years of age and before his
appointment. ...

Section 506 (c) of the Armed Forces Regular
Officer Augmentation Act of 1947, (repealed
by the 1956 Act, above).

(c) For the purpose of determining grade,
position on promotion list, permanent arade
seniority, and eligibility for promotion,

- —

12a

each person initially appointed and commis-
sioned as officer in tiie Regular Army shall,
at time of appointment, be credited with an
amount of service equivalent to the total
period of active Federal service performed
after attaining the age of twenty-one years
as a commissioned officer in the Army of the
United States or any component thereof sub-
sequent to December 31, 1947, and prior to
such appointment...

Legislative History of Section 203(d) Regular
Officers Augmentation Act of 1956, U.S. Code
Congressional and Administrative News, 1956,
at page 3369.

(d) PROTECTION OF PROMOTION SENIORITY OF
ACADEMY GRADUATES WITH CONTINUOUS SERVICE

The purpose of this subsection is to
insure the promotion seniority of

Academy graduates now on the Regular

list with regard to classmaces who may
receive Regular appointments under this
title. It provides for two things:

(1) That no person who was a cadet at
one of the Adademies may be appointed
with a date of rank prior to the date
received by his classmates who were
graduated and appointed as officers, and
(2) that no person who was a cadet but
did not graduate from an Adademy may be
credited with a longer period of pro-
motion-list service at the time of his
appointment than is credited to his _
former classmates now on the Regular List.
This subsection is a restatement of exist-
ing law.

13a

Legislative History of 10 U.S.C. 8202,

1959 Officer Grade Limitation Act, U.S.
Code Congressional and Administrative News,
1959, at page 2694.

CitANGE IN TEMPORARY PROMOTION
SYSTEM TO THE GRADE OF “AJOR

The additional vacancies authorized under
this legislation will afford the Air Force an
opportunity for revising administratively its
present criteria for consideration to the
grade of temporary major. Up until the pre-
se1t time officers have been placed in the
zone for consideration for temporary major
based upon the time in their current grade.
The time-in-grade criteria was considered by
the Air Force to be the only method whereby
large numbers of Reserve officers could
compete with Regular officers.

With the enactment of this legislation,
the Air Force would thereafter provide that
consideration for promotion to temporary
major will be based upon total active com-
missioned service rather than time in grade.

Section 27, Public Law 85-861, 1957,
Amending 10 U.S.C. 3287, 8888 and 8927.

Notwithstanding any other provision of
law, the years of service credited to an
officer of the Regular Air Force on July 20,
1956, for the purposes of Section 8287, 8888
(2) (A)-(C) and (E)-(G), and 8927(a) (1)-(3)
and (5)-(7) and (b)(2) of Title 10, United
States Code (this section and sections
8888(2) (A)-(C), (E)-(G) and 8927(a) (1)}-(3),
(5)-(7), (b)(2) of this title), may be
increased but not by more than two years,
urder regulations to be prescribed by the
Secretary of the Air Force.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2009%3A1. Public record. Not legal advice.